Opinion
E074095
05-10-2021
THE PEOPLE, Plaintiff and Respondent, v. FELICIANO LEON CORONEL, Defendant and Appellant.
Erica Gambale, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Eric A. Swenson, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. INF1500217) OPINION APPEAL from the Superior Court of Riverside County. James S. Hawkins, Judge. (Retired Judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed. Erica Gambale, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Eric A. Swenson, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Feliciano Leon Coronel was convicted by jury trial of one count of committing a lewd or lascivious act on a child under the age of 14 years. (Pen. Code, § 288, subd. (a).) He appeals, contending the court prejudicially erred in admitting expert testimony on child sexual abuse accommodation syndrome (CSAAS). We disagree and affirm.
I. PROCEDURAL BACKGROUND AND FACTS
A. Procedural Background.
The prosecution charged defendant in counts 1 through 5 with committing a lewd or lascivious act on a child under the age of 14 years (Pen. Code, § 288, subd. (a)), and in count 6 with showing pornography to a minor (Pen. Code, § 288.2, subd. (a)(2)). The jury found him guilty on count 1 and not guilty on counts 4, 5, and 6. The jury could not reach a verdict on counts 2 and 3, and those charges were dismissed. On November 8, 2019, the trial court sentenced him to eight years in state prison.
B. Facts.
The issue raised by defendant does not require a complete recitation of the facts. It is sufficient to state that the evidence shows defendant began molesting the victim (born in 1999) when she was in the sixth grade and continued into her eighth grade. At the time of trial, the victim was 20 years old. She testified that on multiple occasions defendant rubbed her vagina, rubbed her over her clothes, exposed his penis and had her touch it, and put his penis inside her and ejaculated. She also testified that he showed her pornography on his computer. On March 1, 2013, she told her mother about defendant's actions.
II. DISCUSSION
Defendant contends the trial court abused its discretion in admitting testimony from the prosecution's expert witness on CSAAS. He argues CSAAS evidence should be inadmissible for all purposes because it is unreliable. But even if CSAAS evidence is generally admissible, he maintains it should have been excluded because (1) the jurors did not have any preconceived ideas about victims of sexual abuse; (2) the expert improperly profiled the complaining witness; (3) the CSAAS evidence was not relevant and substantially more prejudicial than probative; and (4) he was prejudiced by the CSAAS evidence. At the outset, the People assert defendant's claims regarding general admissibility and relevance of CSAAS evidence are forfeited because he failed to raise these issues at the trial level. (Evid. Code, § 353, subd. (a); People v. Demetrulias (2006) 39 Cal.4th 1, 20 [admission of evidence of victims' peaceful characters].) Nevertheless, we reach the merits to "prevent the inevitable ineffectiveness-of-counsel claim." (People v. Norman (2003) 109 Cal.App.4th 221, 230.)
A. Further Background Information.
Before the trial, the prosecutor asserted expert testimony on CSAAS was necessary to explain the misconceptions concerning sexual assault victims and because the victim's credibility was at issue given her delayed reporting and her failure to fight back during the alleged assaults. She argued that the jurors needed to understand that a victim's delay in reporting does not mean she had not been sexually abused because there is an "element of secrecy, . . . of helplessness, and accommodation." Defense counsel sought exclusion of the CSAAS evidence under Evidence Code section 352 and argued the proposed expert lacked the necessary qualifications to be deemed an expert in CSAAS. Alternatively, he requested a limiting instruction. The prosecutor agreed the jury should be instructed with CALCRIM No. 1193 and added: "The People do not intend to use it as a diagnostic tool but merely to dispel these myths and generalities."
The court found the CSAAS evidence admissible. The jury was instructed with CALCRIM No. 1193 as follows: "You have heard testimony from Denise Bowman regarding child sexual abuse accommodation syndrome. [¶] Denise Bowman's testimony about child sexual abuse accommodation syndrome is not evidence that the defendant committed any of the crimes charged against him. [¶] You may consider this evidence only in deciding whether or not [the victim's] conduct was not inconsistent with the conduct of someone who has been molested, and in evaluating the believability of her testimony."
During the trial, Denise Bowman, the director of forensic services and victim advocacy at the Barbara Sinatra Children's Center, testified that CSAAS "was coined in the late 1980s by [Dr.] Roland Summit," who noticed that victims of continuous sexual abuse shared specific characteristics. Bowman described the five symptoms of CSAAS: secrecy, helplessness, entrapment or accommodation, delayed and unconvincing disclosure, and retraction or recanting. She explained that there are many different ways children exhibit these symptoms: "[T]hey maybe start to be angry, aggressive, isolate, internalize, become suicidal, . . . maybe low performing in school, like there's just a change, and maybe they get an assessment and they decide to tell." She added that disclosure is a process where a child may tell one person a little about being touched, "testing the water" to see what the reaction is; however, the child may not relate the details of the touching in the same manner each time he or she discusses the touching.
Bowman agreed that children need an "'adult clinical advocate to translate [their] words into an adult-acceptable language,'" and the advocate "should support the child if [he or she is] making a disclosure." She also agreed that Dr. Summit encouraged adult clinical advocates to advocate in the courtroom and advocate on credibility. Bowman concurred that CSAAS is an advocacy model, not a diagnostic tool, and it is important to make room for the possibility that individuals may be falsely accused. She explained that CSAAS is meant to dispel the myths that children always immediately disclose inappropriate touching, and they disclose everything in a very logical manner.
Bowman had not read any reports, reviewed any interviews, or talked with the victim or any witnesses in the instant matter. She offered no opinion as to whether the victim suffered sexual abuse.
B. Legal Principles.
Expert testimony concerning CSAAS is admissible "to disabuse jurors of commonly held misconceptions of child sexual abuse and the abused child's seemingly self-impeaching behavior." (People v. Gonzales (2017) 16 Cal.App.5th 494, 504 ["CSAAS evidence simply neutralizes the victim's apparently self-impeaching behavior."].) "For instance, where a child delays a significant period of time before reporting an incident or pattern of abuse, an expert could testify that such delayed reporting is not inconsistent with the secretive environment often created by an abuser who occupies a position of trust." (People v. Bowker (1988) 203 Cal.App.3d 385, 394 (Bowker).)
C. Analysis.
1. CSAAS evidence is admissible.
According to defendant, CSAAS evidence should be inadmissible for all purposes because, by its very nature, it is unreliable since it will always support the conclusion that the abuse occurred. However, he concedes that California courts have held expert testimony on CSAAS is admissible to rebut common misperceptions jurors may have about how children react to sexual abuse. (People v. McAlpin (1991) 53 Cal.3d 1289, 1300 (McAlpin) [CSAAS evidence regarding typical reactions children may have to abuse, including initially denying the abuse or delay in reporting the abuse, "is not admissible to prove that the complaining witness has in fact been sexually abused," but "it is admissible to rehabilitate such witness's credibility."]; Bowker, supra, 203 Cal.App.3d at p. 394 ["[W]here a child delays a significant period of time before reporting an incident or pattern of abuse, an expert could testify that such delayed reporting is not inconsistent with the secretive environment often created by an abuser who occupies a position of trust."]; People v. Housley (1992) 6 Cal.App.4th 947, 955 [expert testimony admissible to explain why child recanted her claim that the defendant molested her].) Citing decisions from other jurisdictions, defendant invites us to disregard these precedents, join the courts of these sister jurisdictions, and hold that CSAAS evidence is inadmissible for all purposes. But, decisions from courts in other jurisdictions and lower federal courts are, at most, persuasive. (People v. Mays (2009) 174 Cal.App.4th 156, 167 ["[W]e are not bound by cases from other states."]; People v. Johnson (2015) 61 Cal.4th 734, 782 ["[W]e are not bound by the decisions of the lower federal courts."].) We decline to join the courts from other jurisdictions, as we must follow the California Supreme Court's holdings on this matter. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
The People reference several other cases, which have held that CSAAS evidence is admissible, including: People v. Brown (2004) 33 Cal.4th 892, 895-896, 906-907 [applying the same reasoning to uphold the admission of expert testimony regarding battered women's syndrome]; People v. Mateo (2016) 243 Cal.App.4th 1063, 1069; People v. Perez (2010) 182 Cal.App.4th 231, 245; People v. Sandoval (2008) 164 Cal.App.4th 994, 1001-1002; and People v. Harlan (1990) 222 Cal.App.3d 439, 449-450, to name a few.
2. CSAAS evidence was relevant and properly admitted.
Even if CSAAS evidence is generally admissible, defendant contends the trial court should have found it irrelevant and excluded it because the jury voir dire "clearly shows that not one of the jurors had any preconceived ideas about how a victim of sexual abuse should act." We reject the contention.
a. Further background information.
During voir dire, defense counsel inquired as to whether the prospective jurors could "make room for the possibility that people can be falsely accused even of serious crimes such as this." He asked: "[D]o we all agree that we have a consensus that teenagers aren't necessarily always truthful?" Later, he inquired: "So if I were to cross-examine the alleged victim—that would be my obligation to do—and ask questions pointing out inconsistencies or a changing story, would you hold that against me or my client?"
In response, the prosecutor underscored "the fact that people are sexually abused in our community" and noted the difficulty for "somebody who is a victim of sexual abuse to come into court and testify." She then asked whether any juror had an "expectation" of how a victim of sexual abuse should react in the courtroom. One prospective juror replied: "Oh, I'm sure they would all react differently 'cause everyone's different to me, you know." The prospective jurors agreed that a child victim of sexual molestation might not immediately report the abuse. When the prosecutor remarked that, in these types of cases, the proof often rests on the testimony of a single victim with no corroboration, one prospective juror stated they could not convict based on the victim's testimony alone because they would "want to have supporting evidence of that." The prospective juror explained: "I think sometimes a witness's statement might change over course based on who they are in relationship to who's being accused of abusing them, and so I guess that's why I would want to have some more concrete evidence of some nature that could make me feel like their testimony was not biased based on who I have to go back home to today or who I'm financially dependent upon."
b. Analysis.
Here, the victim delayed reporting the sexual abuse. According to the evidence, she could have disclosed the abuse earlier than she did since it occurred in her mother's bedroom while her grandmother was home, in her brother's bedroom while other children were present, and in defendant's bedroom at his home while his brother was present. Instead, she waited until after her mother yelled at her for running away with her boyfriend. According to the defense, the victim lied about the abuse and manufactured the story during her first forensic interview because she had been caught running away from home with her boyfriend. Defense counsel argued: "But the problem is once you give a false story that rises to the level of creating criminal charges, she's forced to be in a position where she has to maintain that story. And that's why the story changes over time on significant things, because she changed the story in the second forensic interview, and then she was unable to recall or sustain that story during the preliminary hearing and changed it yet again, and the same thing happened at this jury trial."
Given the victim's delayed reporting, the trial court reasonably allowed the prosecutor to present CSAAS testimony to rebut misconceptions (i.e., a child would surely disclose or cry out in response to actual abuse) the jurors may have held but not contemplated, during voir dire. It is enough that a juror "might hold" misconceptions "about how a child reacts to a molestation." (People v. Patino (1994) 26 Cal.App.4th 1737, 1744.) Moreover, the defense attacked the victim's credibility by asserting she had manufactured the claims of sexual abuse only after she was caught running away from home with her boyfriend. Bowman's testimony regarding CSAAS evidence was, therefore, "pertinent and admissible" on the issue of the victim's credibility. (Patino, at p. 1745; see McAlpin, supra, 53 Cal.3d at p. 1299; Evid. Code, § 801, subd. (a) [Expert testimony is admissible if it is "[r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact."]; see also People v. Riggs (2008) 44 Cal.4th 248, 293 ["The relevance of [expert battered woman syndrome] evidence is based on the possibility that the jurors will doubt that a witness who claims to have been abused has indeed acted in the manner to which he or she testified, and therefore the jurors might unjustifiably develop a negative view of the witness's credibility."].) Because it would be natural for a jury to wonder why the victim did not immediately report the molestation if it had occurred, the CSAAS evidence was relevant and properly admitted. (Patino, at p. 1745.)
3. Bowman's testimony did not improperly profile the victim.
Defendant contends Bowman's testimony was inadmissible because it "described CSAAS in a way that allowed the jury to apply the syndrome to the facts of the case and conclude [the victim] was sexually abused." He asserts the expert used the courtroom setting to advocate for the victim's credibility and, thus, "the only reasonable conclusion was that Bowman was testifying in this case because [she] determined and believed that [the victim] was in fact abused." Defendant relies on the holding in Bowker that defined the proper bounds of CSAAS evidence. (Bowker, supra, 203 Cal.App.3d at p. 393 ["It is one thing to say that child abuse victims often exhibit a certain characteristic or that a particular behavior is not inconsistent with a child having been molested. It is quite another to conclude that where a child meets certain criteria, we can predict with a reasonable degree of certainty that he or she has been abused. The former may be appropriate in some circumstances; the latter—given the current state of scientific knowledge—clearly is not."].)
In Bowker, the Court of Appeal concluded the expert's testimony exceeded the acceptable limits because it "was replete with comments designed to elicit sympathy for child abuse victims and solicitations that children should be believed." (Bowker, supra, 203 Cal.App.3d at p. 394.) "[T]he picture painted by [the expert] happened to be of the two children in the case," as demonstrated by the expert's question, "'Why are they taking me away from my mom?,'" which "directly coincided with the fact that as a result of the investigation [the children] were removed from their mother's home and placed in foster care." (Ibid.) The expert spoke of the alleged child victims in the case as if he knew they had been abused, and stating, "how frightening it was 'for a child to come into this courtroom, and I know they have to, and tell their story.'" (Ibid.)
Here, in contrast, Bowman did not exceed the limits of CSAAS testimony as did the expert in Bowker. She testified she had not reviewed any interviews or reports and had not talked to the victim or any witnesses involved in the case. She did not opine whether the victim should be believed or not. As defense counsel elicited on cross-examination, Bowman acknowledged that there are times when the allegations made during victim interviews prove untrue, and there are instances where individuals are falsely accused of sexual abuse. Contrary to defendant's claim, Bowman's testimony did not improperly track the CSAAS evidence to the facts of this case, nor did it profile defendant as a molester. Instead, she explained that CSAAS is not a "diagnostic tool" but rather a means of educating people about the dynamics associated with sexual abuse that may diverge from common experience or expectations. The jury was further instructed that Bowman's testimony on CSAAS was "not evidence that the defendant committed any of the crimes charged against him." (CALCRIM No. 1193.)
Viewed as a whole, Bowman's testimony properly informed the jury of circumstances in which a sexually abused victim's reactions may not be inconsistent with abuse but left the question regarding whether abuse occurred for the jury to decide. We, therefore reject defendant's assertion that the jury misused the CSAAS evidence.
4. CSAAS evidence was not unduly prejudicial.
Defendant contends the CSAAS evidence should have been excluded under Evidence Code section 352 because its minimal probative value was far outweighed by its undue prejudice. Specifically, he asserts that since the jury held no common misconception about child sexual abuse, Bowman's testimony exceeded the limitations set forth in Bowker in order to bolster the victim's credibility and to advocate for her credibility. We disagree.
"Opinion testimony by an expert witness is admissible if it is . . . '[r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.'" (McAlpin, supra, 53 Cal.3d at p. 1299.) "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will . . . create substantial danger of undue prejudice . . . ." (Evid. Code, § 352.) "'In applying [Evidence Code] section 352, "prejudicial" is not synonymous with "damaging."'" (People v. Karis (1988) 46 Cal.3d 612, 638.) It involves evidence that tends to "'evoke an emotional bias against the defendant . . . which has very little effect on the issues.'" (Ibid.; see People v. Scott (2011) 52 Cal.4th 452, 491.) The decision to admit or exclude expert CSAAS testimony is reviewed for abuse of discretion. (McAlpin, at p. 1299.)
Here, the trial court did not abuse its discretion in finding the CSAAS evidence admissible under Evidence Code section 352. As previously discussed, the evidence was both relevant and probative to help explain the victim's inconsistent accounts of what happened and her delayed reporting. Bowman's testimony was not inflammatory. Rather, it was brief and academic in nature. It only addressed the purpose for which the CSAAS model was designed, how the model is applied in the field, and the five parts of the model that assist in understanding a child's behavior in response to sexual abuse. The expert did not use any graphic examples or explain the typical behaviors of sexual assault victims gratuitously. Nor was the testimony likely to confuse the jury. Bowman stated she had not reviewed any evidence in this case or talked to the victim or any witnesses, and she offered no opinion whether the victim was telling the truth. Thus, it is not likely the jury interpreted her testimony as expressing an opinion on the victim's specific behavior in this case.
Although Bowman agreed that the CSAAS model is "an advocacy model" because it talks about "occurrence and characteristics," she maintained that it is "not a diagnostic tool." When defense counsel questioned her on specific points and assumptions made by Dr. Summit concerning the five characteristics of CSAAS, Bowman testified: "[I]n my opinion, it's just talking about characteristics that we see, that I see as an interviewer with a lot of experience with field and children, that these five characteristics could occur. But the rest of what he says—I mean, I don't personally hold too much value to that."
Because Bowman's testimony did not amount to vouching for the victim's credibility nor offering an opinion about whether the victim was sexually abused, the court did not abuse its discretion in admitting the evidence.
5. Defendant was not prejudiced by CSAAS evidence.
Even if we assume the trial court erred in admitting CSAAS evidence, the error was harmless under either the state (People v. Watson (1956) 46 Cal.2d 818, 836) or the federal constitutional standard (Chapman v. California (1967) 386 U.S. 18, 24).
Despite being charged with five counts of committing a lewd or lascivious act on a child under the age of 14 years and one count of showing pornography to a minor, defendant was convicted of only a single count of committing a lewd or lascivious act on a child under the age of 14 years. There is overwhelming evidence to support this conviction. In addition to the victim's testimony, defendant admitted he touched the victim during a pretext telephone call with the victim's mother. Defendant told the victim's mother that he had given the victim at least one massage "in all her body"—at her request—while he was alone with her; that he touched her "because she was telling [him] to"; and that he "committed an error." When asked if he touched her where she said he had touched her, defendant replied, "She told me to touch her." He later added, "But, but that's as far as all that got and that's it, it wasn't right, I got out of that." When the victim's mother pressed defendant on whether he digitally penetrated the victim's vagina with his fingers, he replied, "But those things cannot be discussed over the phone. These things need to be discussed in person." Defendant admitted that what he did was wrong, and he apologized to both the victim and her mother. At trial, the prosecutor alluded to the massages and asked, "[S]he made you aroused; right?" He replied, "Well, in some way, yes."
"I committed an error . . . . I'm not saying that I didn't . . . . Yes, I did give her a massage because she was telling me to. I was touching her, and I decided to touch her because she was telling me to . . . , not because I wanted to do it." --------
Nonetheless, defendant contends the CSAAS evidence "improperly bolstered the credibility of [the victim] and painted her as a typical abuse victim." This argument ignores defendant's admission and the jury instruction that advised jurors that Bowman's testimony about CSAAS was "not evidence that the defendant committed any of the crimes charged against him." (CALCRIM No. 1193.) Additionally, the jurors were instructed (1) to judge the credibility of the witnesses and decide whom to believe (CALCRIM No. 226); (2) that they were required to review the testimony of a single witness in light of all the other evidence (CALCRIM No. 301); (3) that a witness's pretrial statements could be used to evaluate that witness's credibility (CALCRIM No. 318); (4) that expert testimony had been admitted only for a limited purpose (CALCRIM No. 303); and (5) that they could disregard the expert testimony or decide what weight to give it (CALCRIM Nos. 332, 333). We presume the jury followed these instructions. (People v. Cain (1995) 10 Cal.4th 1, 34.)
For the above reasons, we conclude that, even if the trial court erred in admitting the CSAAS evidence, the error was harmless beyond a reasonable doubt.
III. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J. We concur: FIELDS
J. MENETREZ
J.